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Virtual Courtrooms in Miami

By McDermott Will & Emery on Dec 11, 2020
Posted In Court Technology, Florida, Reopening Procedures

This morning we received this notice from state court in Miami (the Eleventh Judicial Circuit) where we have a case pending:

Coronavirus/COVID-19: Courthouses are closed for in-person hearings and trials based on public health advisories at the direction of the Florida Supreme Court. The Eleventh Judicial Circuit wants you safe at home.

We are establishing Virtual Courtrooms. Court hearings in your case that we can hold remotely via video or phone conference will be held on the Zoom platform, which is free to you. You will receive an email from the Court if we are proceeding with your hearing with the information you need to connect.

Competing Approaches in South Carolina

By McDermott Will & Emery on Dec 7, 2020
Posted In Federal Courts, Reopening Procedures, South Carolina, State Courts

Last week saw differing approaches to the pandemic in South Carolina. In the state court system, Chief Justice Don Beatty suspended all state civil and criminal jury trials, finding “that in light of the ongoing increase in COVID-19 cases throughout South Carolina, and the expectation by the medical community and experts that the number of positive cases will continue to increase in the near future, it is prudent to once again make changes to the operations of the circuit courts for the protection of those who work within the courts, as well as those who serve our state by participating in jury service…It is ordered that the circuit courts statewide shall not commence any jury trial after December 4, 2020.”

In federal court, however, US District Judge J. Michelle Childs did not react well to a defendant’s suggestion that a requested stay might not matter that much anyway, given the pandemic. She wrote:

“Defendant is severely mistaken that ‘due to the global COVID-19 pandemic (and its particular impact on civil trial dates), a stay may ultimately not have any meaningful impact on the trial schedule in this case.’ The undersigned has conducted one civil trial and one criminal trial since the COVID-19 pandemic began. Given the success of those trials and the extensive protocols the courthouse has in place, the undersigned intends to proceed with all hearings and trials as scheduled. As a result, this case will proceed to trial in September 2021 as contemplated by the Third Amended Scheduling Order….”

Trial by Webex, but Not Zoom?

By McDermott Will & Emery on Dec 4, 2020
Posted In Court Technology, Federal Courts, Reopening Procedures, State Courts

Litigation by Zoom is not novel at this point. Depositions by Zoom, motions hearings by Zoom, bench trials by Zoom—it’s all become commonplace. While federal civil jury trials by Zoom have been rare, there have been many in various state courts. And while we know from our daily lives that other videoconferencing services are available (Teams, Webex, GoToMeeting, Collaborate), Zoom predominates in pandemic litigation.

It was curious, then, to see a ruling from the US Court of Federal Claims. Confronted with a routine discovery motion for leave to take depositions remotely pursuant to Federal Rule of Civil Procedure 30(b)(4), which requires such leave in the absence of a stipulation, Judge Charles Lettow wrote: “In the circumstances at hand, the court GRANTS leave for depositions to be taken either telephonically or by Webex. Zoom should not be used, absent proof that such use would be secure.”

It seems that the parties did not direct the court to Zoomgov.com:

A Mistrial, without a Positive Case

By McDermott Will & Emery on Nov 30, 2020
Posted In North Carolina, Reopening Procedures, State Courts

In Charlotte, North Carolina, the Superior Court for Mecklenburg County attempted to hold its first pandemic jury trial, starting November 16. Things did not go well.

First, during the evidence phase, a jury was excused after reporting a possible exposure. He later tested negative. Then, jury deliberations were suspended for a week when a juror began experiencing COVID-19-like symptoms. That juror too tested negative. Then, on Monday, a jury who traveled during Thanksgiving notified the court of being exposed to relatives who were not showing COVID-19 symptoms. The courthouse was trying to arrange testing for that juror.

The result? A mistrial, without a positive test.

Meanwhile, the county reports that more than 700 felony cases are awaiting trial, including 100 homicide cases and another 150 involving rapes, assaults and other violent offenses.

According to the Charlotte Observer, “the statewide surge in new COVID-19 cases is already surpassing some of the disease measures the courthouse pledged to use to gauge whether the jury trials should continue.” But jury selection of the second pandemic jury trial is now underway.

Continuing the Continuances

By McDermott Will & Emery on Nov 25, 2020
Posted In Federal Courts, Minnesota, Reopening Procedures

On Monday we summarized the various district court orders shutting down jury trials. But events are outpacing us. The US District Court for the District of Minnesota had continued all 2020 jury trials; last night, the continuance was extended until February 1, 2021.

Content May Soon Run Out

By McDermott Will & Emery on Nov 22, 2020
Posted In Arkansas, Colorado, Federal Courts, Illinois, Indiana, Kansas, Kentucky, Maryland, Minnesota, Missouri, Nebraska, Nevada, Oklahoma, Pennsylvania, Reopening Procedures, Texas, Utah, Virginia, Washington State, Wisconsin

What will we write about when all the courts have closed?

We are rapidly on the way to finding out, especially in the federal system. Here’s a summary of recent federal district court orders on jury trials:

Eastern District of Arkansas: Civil and criminal jury trials scheduled before January 15, 2021 are continued to a later date.

District of Colorado: Civil and criminal jury trials scheduled before January 8, 2021 are continued to a later date.

Northern District of Illinois: Civil and criminal jury trials suspended indefinitely.

Central District of Illinois: Civil and criminal jury trials suspended and shall be reset for a date after January 25, 2021.

Southern District of Illinois: Civil and criminal jury trials set through January 24, 2021 are cancelled and will be reset.

Northern District of Indiana: All jury trials scheduled to begin before January 29, 2021, are continued and will be rescheduled by the presiding judge “unless the presiding judge, in their discretion, determines on a case-by-case basis that a trial should proceed as scheduled.”

Southern District of Indiana: All “in person jury trials “are continued until at least January 25, 2021. “Jury trials conducted by video teleconference” may proceed upon motion and/or Order of the presiding judge.

District of Kansas: All criminal and civil jury trials are suspended until January 4, 2021.

Eastern District of Kentucky: Civil and criminal jury trials set through January 15, 2021 are “continued generally.” However, “any judge may, in his or her discretion, determine that the need to conduct a jury trial during this period outweighs the public health concerns addressed herein.”

Western District of Kentucky: No jury trial shall be scheduled to begin before January 3, 2021.

District of Maryland: All in-court proceedings are suspended.

District of Minnesota: All criminal and civil jury trials set for 2020 are continued. All “civil jury trial-specific deadlines” are also continued. Trial judges may approve exceptions.

Western District of Missouri: All criminal and civil jury trials set before January 4, 2021 are continued,

District of Nebraska: All civil and criminal jury trials set on or before December 1, 2020 are continued.

District of Nevada: All jury trials are postponed pending further notice.

Northern District of Oklahoma: All civil trials (the order does not distinguish between jury and bench trials) through November 30, 2020 are continued, but all other scheduling order deadlines remain in effect.

Western District of Pennsylvania: All civil and criminal trials scheduled to begin before February 8, 2021 are continued. “Notwithstanding the above, the Court intends on an initial basis to conduct one or more civil jury trials in each Division of the Court at one or more junctures occurring during the period of November 2020 through January 2021 in order to facilitate and assess the safe and effective implementation of operational protocols for jury trial operations. Such civil jury trials will be scheduled by the presiding judicial officer after consultation with the undersigned and shall not involve any detained participants.”

Western District of Texas: All civil and criminal jury trials set before November 30, 2020 are continued. However, divisions may opt out. (All eyes are on the Waco Division.)

District of Utah: All civil and criminal jury trials are continued through February 1, 2021.

Eastern District of Virginia: Civil jury trials are suspended indefinitely. No criminal jury trials will be held before January 19, 2021.

Eastern District of Washington: Civil and criminal jury trials are suspended for the rest of 2020.

Western District of Wisconsin: Civil and criminal jury trials are suspended through January 31, 2021.

In EDTex, the Fallout Continues

By McDermott Will & Emery on Nov 20, 2020
Posted In Federal Courts, Reopening Procedures, Texas

As we’ve covered in several posts below, a trial fell apart in the US District Court for the Eastern District of Texas in Sherman earlier this month, with jurors, attorneys and court staff all contracting COVID-19 (at least 13 people in total) and others now in quarantine. The question now is: What lesson will other judges take from what happened in Judge Amos Mazzant’s courtroom?

We may soon find out. Citing Judge Mazzant’s trial and the rising level of cases in Texas and across the country, defendants with December patent infringement trials in Marshall are seeking continuances. Their papers are here and here and also embedded below:

These briefs will be useful for any litigants seeking continuances right now.

When Jurors Want to Quarantine Mid-Trial…

By McDermott Will & Emery on Nov 19, 2020
Posted In Federal Courts, Missouri, Reopening Procedures

A BigLaw civil jury trial finished yesterday in the US District Court for the Eastern District of Missouri. The first phase was a 12-day trial that began October 1 and concluded on October 22 with a verdict of $21 million in compensatory damages for the plaintiff. A punitive damage phase began—and ended—yesterday.

At some point before the punitive phase, the judge excused Juror #1 because of “COVID-19 exposure,” according to a filing by the defendant. Yesterday morning, the defendant moved for a mistrial based on the change of composition of the jury. In the alternative, the defendant sought a mistrial “on the grounds that the Court improperly [dismissed Juror #1] without providing the interested parties the opportunity to participate in the examination of the impact of the juror’s excusal for quarantine for COVID-19.”

The judge let the trial go forward, with a plan to take up the motion for a mistrial before the jury deliberated. Opening statements, evidence, closing arguments and jury charge were all accomplished over a five-hour period. Then the court denied the motion for a mistrial—but it looks like an appellate court will never review this one. After deliberating for just over an hour, the jury returned with a verdict of zero punitive damages.

Dark Winter for Trial Lawyers

By McDermott Will & Emery on Nov 18, 2020
Posted In Alaska, Delaware, Federal Courts, Indiana, New Jersey, New York, Pennsylvania, Reopening Procedures, State Courts, Tennessee, Texas, Vermont

Today there is a wave of news. Delaware froze jury trials, although only through December 4. New York state courts have suspended jury trials indefinitely. New Jersey has continued all jury trials, except one that is in progress. Tennessee suspended jury trials through January 31. Vermont, one of the states least impacted by the pandemic, never resumed holding jury trials, and it has canceled its plans to do so in December. Alaska has shut down jury trials through at least January 4. Pennsylvania has suspended most courthouse operations, including jury trials, statewide—just days after leaving it up to individual jurisdictions. And the US District Court for the Southern District of Indiana has suspended all jury trials through January 25.

Meanwhile, in the suspended US District Court for the Eastern District of Texas breach of contract trial in Judge Amos Mazzant’s courtroom, which we’ve covered previously, now 13 participants—including two jurors, two people on the plaintiff’s team and three people on the defense—have tested positive for COVID-19. The trial had been set to resume November 30, but one juror didn’t feel comfortable returning to trial at any point, another said they wouldn’t feel comfortable unless the trial was postponed for a month and a third wouldn’t be able to return until December because of scheduling issues, Law360 reports. The result is a mistrial. Judge Mazzant is pushing all his scheduled December trials into 2021.

Even the Rocket Docket

By McDermott Will & Emery on Nov 17, 2020
Posted In Federal Courts, Reopening Procedures, Virginia

The US District Court for the Eastern District of Virginia is the fastest federal docket in the country. The court’s motto is “Justice delayed is justice denied.” But, as they say, the virus doesn’t care about your motto. Yesterday evening, the Clerk of Court sent out this email:

“All criminal jury trials in the US District Court for the Eastern District of Virginia are temporarily suspended, with criminal jury trials to resume on January 19, 2021, absent further Order from this Court. Such temporary suspension is in response to the significant increase in COVID-19 cases, hospitalizations and percent positivity in our District; the increase in known and suspected COVID-19 exposure of court personnel and court users; and the recent statewide and local community actions increasing restrictions aimed at curbing the spread of COVID-19.”

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